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Archive for October, 2011

The Government has announced that the qualification period for the right to claim unfair dismissal will be extended from one to two years from 6 April 2012. The change comes as part of a Parliament long review on employment law, which is looking at all aspects of employment law and is part of the Government’s plans to deliver growth by reducing red tape, boosting opportunities and creating more favourable conditions for both start-up and existing businesses alike.

The rationale behind the change is that by extending the qualifying period it will be much less risky for businesses to take on staff. Government estimates that the change could save British businesses nearly £6 million a year. It also predicts that the number of unfair dismissal claims will drop by around 2000 a year.

The change will not impact on the right of employees to claim unfair dismissal where the reason for dismissal is one which is ‘automatically unfair’. A dismissal is ‘automatically unfair’ where an employee is dismissed for exercising or trying to exercise one of their statutory employment rights, for example if they are dismissed by reason of pregnancy or for ‘whistle-blowing’.

Government has also announced plans to introduce a fee for bringing a claim through an employment tribunal (however, employees who leave work and claim benefits are likely to be exempt). The new charging policy is expected to apply from April 2013. The Government will consult on the level and structure of the fees.

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As a general rule an employer is not under a duty to provide a reference for an employee or ex-employee. However, where a reference is provided the employer is under a duty of care to ensure that it is true, accurate and fair. A breach of this duty can lead to a negligence claim for economic loss caused to the employee as a result.

After 12 years with his employer the claimant in a recent case against a City Council left to take up another post. Although two satisfactory references were provided from previous employers, one reference provided by the ex-employer in this case was challenged. The reference contained positive statements about the ex-employee but it also left some questions unanswered and mentioned concerns about recordkeeping. The author said she could not elaborate on these concerns because they had not been investigated and she pointed out that they would have led to a formal improvement plan if the ex-employee had remained with the Council (rather than disciplinary action).

An earlier offer of employment was withdrawn in light of the reference and the ex-employee was unemployed for a year.

A  County Court had found that the reference was true and accurate but held it to be unfair because it carried with it an ‘unanswered, uninvestigated, unparticularised, unspecific allegation …. which the ex-employee had no opportunity to refute or answer ..’

On appeal, the Court of Appeal had some sympathy for the ex-employee but took the view that the reference could not be said to be unfair. It said that accuracy and truth go to the facts which form the basis of the reference and that fairness goes to the overall balance of the reference and any opinion contained within it.

Employers should exercise caution when issuing references and take legal advice if unsure whether a reference will be deemed fair.

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